Storrow v. Green

JAMES, J.

This action was brought by complaint filed in October, 1912, to secure a decree determining that the plaintiff possessed an interest of a right of way in and over a strip of land fifty feet in width, and to enjoin defendant from interfering with the plaintiff in the enjoyment of its use. The judgment of the court was in favor of the plaintiff, and defendant has appealed therefrom and also from an order denying him a new trial.

In February, 1891, defendant acquired by purchase a parcel of land having its westerly frontage along Raymond Avenue in the city of Pasadena. Along the northerly line of this property was a hotel building owned by the defendant, and along the westerly line was a fence. Immediately after making this purchase the defendant sold to one Swales, since deceased, the southerly one hundred and forty feet of the land, measured along the Raymond Avenue side. This left title remaining in defendant to the fifty-foot strip intervening between the hotel property and the northerly line of the property so sold to Swales. In the deed to Swales, however, in addition to granting title to the southerly one hundred and forty feet of the land, the defendant granted the right to use the fifty-foot intervening strip, the term of the deed making the grant (excepting the particular description of the property) reading as follows: “Together with the right of way

[125]

for all purposes over that certain parcel of land described.

. . . ”

Swales having died, his heirs in 1905 conveyed the property in question, together with the right of way interest, to this plaintiff. The defendant admitted in this action that the instruments of conveyance had passed as we have stated. He asserted in defense the affirmative claim that he had acquired by adverse user all interest of the plaintiff in the fifty-foot strip, and further that all right of way privileges granted under the deeds to Swales, had been lost by nonuser or abandoned. It is hardly necessary to suggest that in considering the evidence upon which the trial judge made up his findings, we must take all of such evidence favorable to the plaintiff in its strongest effect. In other words, as it is often said in the decisions, if we find any substantial evidence which may be used to support all the material findings of the court, the judgment must be sustained. Therefore, in such statement of the evidence as we are about to append, no consideration is given to evidence introduced by the defendant the effect of which is merely to contradict the evidence offered by the plaintiff. It appears from the transcript of the testimony that when defendant purchased the one hundred and ninety feet of ground first mentioned, it had upon it a fence along the entire Raymond Avenue frontage. This fence was still there when defendant transferred the south one hundred and forty feet to Swales. The defendant replaced the fence shortly after the purchase made by him, and it appears that he replaced the entire fence at that time, both that along the fifty feet immediately adjoining the hotel and along the one hundred and forty feet which he had transferred to Swales. At any rate, the fence was standing along that entire line in the year 1900, although we cannot determine from any of the testimony definitely as to how long it remained standing thereafter. It seems quite clear that the fence, long after the date of the purchase by the plaintiff, still stood along the Raymond Avenue line for more than the fifty feet next south of the hotel. At the time defendant Green purchased the property it was an uncultivated lot. After he acquired the ownership of it, and after he made his sale to Swales, he began to improve the ground, particularly the fifty feet immediately adjoining the hotel, being the fifty feet over which he had granted to Swales right of way privileges. This fifty-foot strip was parked by Green, and his manager at the hotel obtained per